The claimant, in order to complete her high school education, enrolled in
a correspondence course. The course lasted more than 13 weeks and the
claimant spent about 20 hours per week studying and completing the
courses. She contended she should not have been terminated at age 18
because she was eligible for child's benefits as a full-time student,
according to her understanding of information supplied in an official
publication. The publication in question stated that a claimant, age 18
through 22, may receive child's insurance benefits if she attends a
"private school or college approved by a State or accredited by a
State-recognized or nationally recognized accrediting agency."
Correspondence schools were not mentioned; the claimant argues that she
was therefore entitled to assume such schools were qualified institutions.
Held, the claimant is ineligible for benefits in accordance with
section 404.302(c)(2) of Social Security Regulations No. 4, which
specifically excludes enrollment in correspondence courses. Further
held, the estoppel doctrine may not be applied if it would result in a
granting of a benefit in direct contravention of the provisions of
law.

ATKINS, District Judge:

This is a review of a final decision of the Secretary of Health,
Education and Welfare of the United States of America who has denied the
application of Plaintiff, Angela Brummer Mason, for Social Security
benefits as a child of the entitled retired worker, Philip H. Brummer,
under the provisions of Section 202(d)(1) of the Social Security Act.

Plaintiff Brummer (Mason) seeks child's insurance benefits under section
202(d)(1) of the Social Security Act as a child of an individual entitled
to old-age insurance benefits who at the time of application is unmarried,
is a "full time student" who has not attained the age of 22, and is
dependent upon the insured individual.

Plaintiff received Social Security benefits as a child of the entitled
retired worker, Philip H. Brummer, from October 1974, until she reached
age 18 in February , 1975. Her benefits were terminated in February 1975,
based on a determination that she did not meet the qualifications for
entitlement of a full- time student. On November 12, 1975, she requested
reconsideration contending that her correspondence courses from the
American School in Chicago, Illinois, qualified her for benefits as a
student. She was notified on February 9, 1976, that it was determined upon
reconsideration that she was not eligible to receive monthly child
insurance benefits because she was not a minor child, a disable adult
child, or a full-time student as recognized in the Social Security Act and
Regulations. On March 13, 1976, she requested a hearing. The hearing was
held on June 22, 1976, at Miami, Florida. A request for review of the
decision resulted in the affirmance of the decision by the Appeals Council
on December 1, 1976. Plaintiff then sought judicial review pursuant to 42
U.S.C. Section 405(g) by filing the Complaint in this case.

The function of this Court is not to determine the claim of Plaintiff
Brummer (Mason) de novo, but rather to determine whether the
findings of the Secretary as to any fact are supported by substantial
evidence. 42 U.S.C. Section 405(g); Malveaux v. Mathews, 542 F.2d
647 (5th Cir. 1976); Gautney v. Weinberger, 505 F.2d 943 (5th Cir.
1974).

The Administrative Law Judge stated in his decision, after holding an
evidentiary hearing, that the sole issue to be determined is whether the
claimant is entitled to child's insurance benefits on the account of the
retired wage earner, Philip H. Brummer, as a full-time student beneficiary
and that this is dependent upon whether or not correspondence schools are
covered by the Social Security Act. The Administrative Law Judge found
that section 404.320(c)(2) of Social Security Regulation No. 4 (20 C.F.R.
404.320(c)(2) 1975) is dispositive of this issue. Section 404.320(c)(2)
provides in pertinent part: "Ordinarily, a student is in 'full-time
attendance' at an educational institution if he is enrolled in a
non-correspondence course and is carrying a subject load which is
considered full- time for day students under the institution's standards
and practices". Based on this express exclusion of correspondence schools
the Administrative Law Judge found that the Plaintiff was not a "full-time
student" within the meaning of the Act and therefore was not entitled to
child's insurance benefits after February 1975.

Prior to rendering his decision, the Administrative Law Judge held an
evidentiary hearing at which time the Plaintiff (represented by her
mother, Sylvia Brummer) offered testimony. The Plaintiff testified that
she attended high school through the 10th grade, but did not pass the 10th
grade, and therefore had the equivalent of a 9th grade education. She
decided to take the American School correspondence course the summer after
the 10th grade to avoid having to repeat the 10th grade. She stated that
she started the correspondence school about the school year of 1974 and
was still living at home with her family at that time and was not working.
She also stated that she spent about 20 hours a week on the correspondence
course.

Mrs. Brummer testified that, according to a publication of the United
States Government, which she claims she and Plaintiff relied on, a person
is entitled to social security benefits as a full-time student if he or
she attends a high school, trade, or vocational school and is considered
in full-time attendance by the school, is enrolled in a course of study
lasting at least 13 weeks and is enrolled for at least 20 hours a week.
The publication states that "a private school or college approved by a
State or accredited by a State-recognized or nationally recognized
accrediting agency" is a school that qualifies, but does not mention
correspondence schools at all.

The Administrative Law Judge did not address in his decision the question
raised by Mrs. Brummer that Plaintiff should have been able to rely on the
government's publication and that therefore the government should allow
Plaintiff benefits even though the regulations provide otherwise. The
Administrative Law Judge made the following statement during the hearing,
however:

Well, as far as your statement that this is an official publication of
the Government (sic) States Government, and that, therefore, the
government's bound by that. I'm going to have to state that is (sic) has
long been decided by the Supreme Court that the government is not bound by
statements of its employees or agencies. What the government is bound by
is what the law itself provides. And I will carefully study the law and
ascertain if, in fact, such correspondence courses are covered by the law.
I am not bound by publication. I have to proceed on what the law states,
not that.

The Administrative Law Judge apparently decided as a matter of law that
Plaintiff's estoppel argument had no merit. Although there are exceptions
to the general rule that estoppel may not be asserted against an agency of
the United States government the exceptions do not apply in a case such as
this where the alleged representation which Plaintiff relied on is
contrary to the law. See Brown v. Richardson, 395 F.Supp. (W.D. Pa.
1975); U.S. v. State of Florida, 482 F.2d 205 (5th Cir. 1973),
U.S. v. Sexton Cove Estates, Inc., 389 F.Supp. 602 (S.D. Fla.
1975).

In Brown v. Richardson, supra, the factual situation was very
similar to the instant case. Plaintiff contended that the government
should be estopped to deny payment of medicare benefits because of a
statement in a handbook put out by the Social Security Administration that
notices of benefits remaining would be sent, whereas no notices were sent.
The Secretary of Health, Education and Welfare initially denied benefits
without considering the estoppel question and the District Court remanded
the case for factual determinations as to whether the factual
prerequisites for an estoppel claim were present. On reconsideration the
District Court decided that as a matter of law that the Secretary could
not be estopped because the application of the estoppel doctrine would
have worked a result inconsistent with the provisions of the Social
Security Act.

In the instant case there was no express finding by the Secretary on the
estoppel issues either. Although the Administrative Law Judge considered
the estoppel issue, he did not ascertain the factual basis for a showing
of estoppel: whether there was a false representation of fact which the
other party reasonably relied on and prejudice as a result of the
reliance. See Brown v. Richardson, supra.

Plaintiff's position is that she should be given a benefit which the
lawfully promulgated regulations expressly do not allow. Even assuming,
arguendo, the Plaintiff could prove the factual basis for estoppel against
the government, she would not recover because the case law clearly
precludes the application of the estoppel doctrine if it would result in a
granting of a benefit in direct contravention of the provisions of the
law. See U.S. v. State of Florida, supra; U.S. v. Sexton Cove Estates,
Inc., supra. Therefore, it would be fruitless to remand the case to
the agency for additional factual determinations.

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